Fields v. Commonwealth

in Finally, nothing I see the record FIELDS, Appellant, Murphy leads me to believe that Samuel Steven

which failure to by Fratzke’s prejudiced for dam- unliquidated itemize her claims Kentucky, COMMONWEALTH filed in this case ages. pleadings Appellee. pain Murphy notice to clearly gave expenses, suffering, future medical No. 1997-SC-0424-MR. wages, permanent impairment lost Kentucky. Supreme Court of power money were is- to earn labor within this case that Fratzke intended sues 24, 2000. Feb. provide litigate. Fratzke did documen- of her claim for showing tation the extent bound her-

past expenses, medical and she $50,000, maximum

self to a verdict of

thereby Murphy notice of the total gave unliquidated damages, in sought

amount stipulated

when she the amount contro-

versy prevent removal to federal court. Co.,

See, Cole v. Great Atlantic and Tea F.Supp. (E.D.Ky.1990). Note

Contrary majority to the statement

opinion a judg- “[t]he court entered verdict,”

ment accordance with [the] $50,000.00,

verdict was entered apportioned

not for the total amount jury.

Murphy by

Although separately I write dissent Lambert, I wholeheart-

from Chief Justice regarding

edly agree with statements superior position judge

analyze and determine issues of this sort. think; judges

Rules cannot can. It is for great

this that we accord discretion should I judges

to trial in matters of this nature. acknowledges by apply- Bums

believe

ing an abuse discretion standard. See- facts, these

ing no abuse discretion on of Appeals.

would reverse the Court

LAMBERT, C.J., joins this dissent. General,

al, Attorney Criminal Office Frankfort, Division, appellee. Appellate COOPER, Justice. hours of Au- early morning

During 19, 1993, was murdered Bess Horton gust Grayson, her home in the bedroom of slashed, and Kentucky. Her throat was with such in the head she was stabbed the hilt knife buried to force temple point of the blade right her and temple. Officers protruded from her left Larry Ron Lindeman and Green Department were in the Grayson Police investigating suspected neighborhood they light saw a in the burglary when Lindeman entered Horton residence. open through Mrs. bedroom an Horton’s body lying in window and discovered her Appellant He also encountered her bed. posses- Samuel Fields the bedroom knife, blades, nu- razor and sion of two jewelry. merous items Mrs. Horton’s by jury a trial in the Rowan Following Court, Appellant was convicted of Circuit Horton’s murder and sentenced to death. as a matter of appeals He this Court 110(2)(b). § We re- right. Ky. Const. (1) trial, for a because verse new permitted to hear the recorded narra- staged videotaped reenactment of tive of investigation Lindeman’s of the crime scene, erroneously judge the trial jury manslaughter failed to instruct the on included degree in the second as a lesser offense of murder.

I. FACTS. Burton, Appellant’s girlfriend, Minnie acted as a chauffeur for Mrs. Horton and requested. her when ran errands for exchange, Horton allowed Burton to live duplex apartment rent-free in a located Tustaniwsky, R. M. Rans- Oleh Thomas evi- Horton’s residence. There was near dell, Advocates, Depart- Assistant Public Burton that Horton decided to evict dence Frankfort, Advocacy, ment of Public for cut off the water to Burton’s she appellant. spend nights her to apartment, forcing Chandler, III, General, There was also Attorney A.B. the homes of friends. Frankfort, Smith, Burton had remarked that Young, David A. Kent T. evidence that (Horton),” Todd, ought M. to kill and that Attorneys Dana Assistant Gener- “someone friend, Phyllis again Elmer Berry, she had told that windows. Burton fled. police kept a box Prichard called the and Officers containing Horton metal $4,000.00 responded in her This in- Lindeman and Green bedroom. latter call. Appellant pro- testified that he then significant formation became when another for looking ceeded to the Horton residence Berry witness testified that had confessed Burton, Burton told him of to him that she Minnie Burton went her sat intention to “rob” Horton. He on Horton’s to steal the residence metal box beer, porch drinking Horton’s for a while (Berry) and that she killed Horton when through then entered Horton’s bedroom burglary Horton awoke open cigarette He turned window. on his recognized Burton. lighter illumination that the and saw From about August noon on However, room had been ransacked. Appellant, until after midnight, Minnie body did not notice Horton’s the bed. Burton, Phyllis and others Berry, drove began He then whatever he pocketing Counties, Boyd around Carter and con- find, including jewelry could and a knife. alcohol, suming large mostly amounts of the investigating attempted While bur- separate group trips beer. The made two glary duplex, of the Lindeman and Officers purchase Ashland to to several cases of a Horton light Green noticed inside the They at the stopped beer. residence of found door They garage residence. the Berry’s Phyllis Boyd County, brother in open, but the inside door locked. Linde- Appellant whiskey where drank some and man the and open then discovered window tranquilizers.” Ap- ingested some “horse inside, climbed where he both Hor- found finally and pellant Burton returned to jewelry, a body Appellant. ton’s and Some Grayson the spending intention of knife, blades fell from and two razor either night occupied Appel- at a residence Appellant’s pockets. or were removed from mother After entering lant’s and brother. Lindeman, he to read According to offered residence, Appellant continued drink- Appellant his Miranda rights, Appel- but and ing began quarreling beer with Bur- lant to recite them verbatim. was able food, throwing ton. When he furni- began me, Kill Appellant then stated: “Kill Ron. knives, including other objects, ture and big me. her and I’m into it stabbed kitchen, Burton fled around the resi- he time.” Lindeman testified that when and told was Appellant going dence she to Horton, he Appellant why asked had killed apartment. destroying her After some Kill me Appellant replied: “I don’t know. personal property threatening more and my prison going Ron. I’m to for the rest knife, Appellant brother with his a broke this, uttering Appellant life time.” denied fist, on the door with glass kitchen his these His was statements. version arm. causing right lacerations of his After knocked on him and jumped Lindeman retrieving beer, Ap- several more cans of floor, put to his gun him to the then proceeded apartment. pellant to Burton’s head, Horton, and him of killing accused gain entry Burton had been unable to to him. threatened to shoot Prichard, apartment, her Elmer Appellant transported was arrested and duplex, the other resident of the Trooper to by Kentucky Roy State Wolfe Appellant locked the doors. arrived and. King’s Medical Ash- Daughters’ Center told Burton that he had killed his brother injuries right land for to his treatment (which not), he had and asked her if she opinion, arm. that in his Wolfe testified dispose weap- murder alleged would Appellant intoxicated. knife, gave He Burton a which she on. Appellant After from nearby Appel- threw into some bushes. removed scene, un- frenzy” went crime Lindeman and an lant then into “a and at- Officer staged tempted gain entry apart- lengthy Burton’s cameraman identified by ripping videotaped off of the dramatic reenactment ment the screens II. EVIDENCE. leading up Appellant’s ar- VIDEOTAPED investigation The camera- alleged rest and confession. suppress moved in limine to Appellant his man filmed Lindeman as he retraced of Lindeman’s videotaped reenactment duplex apartment to the route from or, alternative, sup- investigation, door, residence, open garage Horton to the thereof, audio narrative press the through open then window and into repetition Appel- especially Lindeman’s bedroom. As he led the cameraman The motion was alleged confession. lant’s reenactment, through the Lindeman nar- played to videotape overruled and was, doing, what he was rated where entirety, in its both video why. He also described Officer audio, direct only during Lindeman’s After en- Green’s locations and activities. prose- testimony, during but also both the tering the bedroom the reenact- closing opening statement and his cutor’s ment, flashlight Lindeman used argument. Ap- gun demonstrate how he drew his pellant. jewelry, the He narrated how the scene, A videotape of crime knife, and the razor had either fall- blades position body including the the victim’s Appellant’s pock- en or been removed from and the location and nature of the victim’s ets, repeated Appellant’s verbatim injuries, just photo is as a admissible murdering confession to Mrs. Horton. graph, assuming proper foundation panned The camera was then around Commonwealth, Ky., laid. Bedell v. 870 knife, jewelry, bedroom to the and the (1993); Milburn v. Common S.W.2d 779 blades, razor then to some blood on the (1989). wealth, If 253 788 S.W.2d carpet Ap- which Lindeman described as probative of an issue relevant and pellant’s Finally, blood. camera was scene, case, like a videotape of a crime focused on the bed where Mrs. Horton’s photograph, crime is admissible even scene body lay, still her throat slashed and the though gruesome. Mills v. Common temple. knife still buried in right her The wealth, Ky., 996 S.W.2d camera continued to focus on Mrs. Hor- Commonwealth, Ky., see also Dillard v. ton’s for approximately forty wounds sec- onds until the and cases cited video was concluded. S.W.2d we have some reservations therein. While Appellant emergency was treated in the respect propriety focusing to the King’s room at Daughters’ Medical Center the camera on the victim’s wounds for as right for some minor lacerations of his seconds, long forty as we conclude arm. No required. Appel- stitches were by jurors would be no more inflamed Dobson, lant was examined Jason depiction by being exposed than to lengthy (EMT), emergency medical technician photograph for the same crime scene opined at trial that there was too much Thus, of time. we conclude that duration Appellant’s clothing blood on arms and admitting the video there was no error injuries. have been caused such minor taped reenactment. The Appel- also testified that he Dobson asked however, portion, of the audio admission lant how he on him and that got blood rule. implicates hearsay significantly s.o.b., responded: stupid “You if Appellant you just lady, you had killed some would narration on the video The audio blood,

be covered with too.” The blood on tape undoubtedly an out-of-court Appellant’s arm off at the was washed truth of the prove statement offered to hospital. Subsequent typing blood asserted, ie., hearsay. KRE matter testing DNA revealed that none of the 801(c). fall within The narration did not Appellant’s clothing blood found on hearsay It was any exception to the rule. Horton and none of the traceable Mrs. KRE present impression, sense blood found on Horton’s bed was traceable 803(1), events because it did not describe Appellant. Lawson, Kentucky The Ev- events which R. they happening, were but statement. II, § Handbook 8.10 at 379-80' It was not within idence Law already occurred. (3d 1993). None of those cir- exception, ed. Michie the recorded recollection KRE. 803(5), in this did not claim to cumstances exist case. because Lindeman of the facts as have insufficient recollection overruling suppress In the motion to reference to testify unable to without videotape, the trial portion of the audio fact, already videotape. he had language opinion from our judge relied exact same facts which testified Commonwealth, supra: in Milbum in the recorded narration. repeated were particularly objects por- to a [Appellant] characterizes the audio Appellant’s brief large on a tape tion of the which focused videotape police as a portion of the “verbal blood, com- pool of and the simultaneous under the report,” which is inadmissible investigating police offi- mentary of the 803(8)(A). KRE public exception, records cer. qualify No effort was made to the video does not fall videotape This 803(6); KRE tape as a business record. category photo- outside of the broad Resources, Human Prater Cabinet for have found admissible graphs which we (1997). 957-59 S.W.2d recognized in approach a liberal under record, i.e., cameraman, maker of the Commonwealth, Ky., 607 Gall v. S.W.2d identified, no never and there was through and continued practice proof regular that it was the Commonwealth, Ky., 751 Wager v. Grayson Department Police to video (1988). The narrative tape investiga of criminal reenactments up to a way measures supplied no Rabovsky tions. ap- description” as grotesque “Poe-like 6, 10 up- it. We pellant characterized has so The audio narration on the video ruling of the trial competent hold the was, fact, tape prior in consistent state probative court to admit evidence. Lindeman’s in- ment offered to bolster Id. at 257. 801A(a)(2). A testimony. pri- court KRE first interpreted the judge The trial generally is admis or consistent statement the “simul- sentence to mean that quoted implied only express to rebut an or sible investigating of the commentary taneous improper recent fabrication or charge of ac- recording police officer” was an audio id., motive, of which is influence or neither The Common- companying videotape. the fact, videotape In the present in this case. fact, that, videotape in the wealth concedes rebuttal, was first was not offered as but por- the audio played was Milbum opening played during prosecutor’s the “simultaneous muted and that tion statement, only prior which occurred not the investi- provided by commentary” was evidence, but any to the introduction of de- witness stand gating officer from the opening state prior to defense counsel’s it videotape as of the scribing the contents Lawson enumerates ment. Professor no provides Milbum being played. was prior circumstances when a some other hear an jury authority allowing for possess “proba could consistent statement of video- out-of-court narration unsworn i.e., repetition,” beyond value mere tive taped evidence. an alleged on whether or not cast doubt uttered, does not assert was The Commonwealth prior inconsistent statement narration of video pre-recorded to refute a claim of inaccurate recollection hear exception to the tape falls within an prior state by the witness made rule, solely on cases ment, prior say but relies amplify clarify alleged or an (Ind.1988), State, statement, 526 N.E.2d upon reflect Lee v. inconsistent or to State, Rita v. grounds, other overruled on alleged inconsistencies the seriousness (Ind.1996) and State N.E.2d 968 testimony prior and a inconsistent between Tran, (Tenn.1993), Van 864 S.W.2d 465 of the against the residents searched denied, 1577, premises, trafficking cert. 511 U.S. that cocaine had oc S.Ct. premises, prop and that the 128 L.Ed.2d 220 curred on the both of which erty “supermarket was not zoned for a the admission of similar held portion cocaine.” Admission of the audio not to be reversible error. That reliance the un- was held reversible error because misplaced. in sworn statements of the officers were State, In supra, Lee v. the Indiana Su- Scott, hearsay. admissible the inadmis preme that, Court noted Trenner- “Officer hearsay sible occurred in a recording ry’s narration in way appel- no connected Here, they were occurring. events as lant with the case nor did any he draw hearsay inadmissible occurred in a record concerning appellant. conclusions His ing of a reenactment of events which purely narration was factual as to what already way, legal occurred. Either being depicted tape on the principle is the same. Here, time.” 526 N.E.2d at 965. the au- portion dio videotape included not Compounding the error in case description being what was de- videotape played is the fact that the picted tape, on the but also Lindeman’s jury entirety only during its repetition Appellant’s alleged case-in-chief, confession Commonwealth’s but also Tran, to the murder. In State v. Van prosecutor’s opening both the state supra, Supreme the Tennessee Court ment and closing argument. RCr 9.42(a) that, fact found that it permit was error to attorney states for the “[t]he jury to hear the audio of a video- Commonwealth shall state to the tape which described a charge crime scene as it nature of the and the evidence was being upon filmed. “The which the practice better Commonwealth relies support would have it.” Thus: been for the trial court to have turned off the volume and had Officer only legitimate purpose tape Garner narrate the from the witness opening explain statement is so to to the However, stand.” 864 at 477. S.W.2d they try they the issue are to harmless, error was deemed because the may bearing understand the of the evi- pertained mainly narrative to minor mat- dence to be introduced. ters or facts established elsewhere in the Lickliter v. Ky. record, and because of the clear evidence see also Brummitt Here, of the guilt. defendant’s the narra- Commonwealth, v. Ky., 357 S.W.2d 37 repetition tive included a Appellant’s (1962); Commonwealth, v. Ky., Turner 240 confession, alleged Ap- the evidence of (1951); Commonwealth, S.W.2d 80 Mills v. pellant’s guilt of murder was not over- (1949). 240, Ky. 310 220 S.W.2d 376 whelming, given the results of the blood prosecutors While we have allowed to Phyllis tests and Berry’s alleged admission display admissible items of real to person that she was the who killed Mrs. statement, jury during opening Sher Horton. Commonwealth, ley v. 794 State, (Fla.Dist. In Scott v. 559 So.2d 269 (1994) victim), (photograph of the Shelton Ct.App.1990), the execution aof search Commonwealth, 733, 134 v. Ky. 280 S.W.2d by police warrant videotaped by a (bloody 653 coat worn the defen national television film crew. The video dant), play we have never sanctioned the tape, including the portion, audio prerecorded of a ing testimony witness’s played to the during statement, the defendant’s during opening much less a wit subsequent criminal trial trafficking prerecorded ness’s unsworn statement. a controlled substance. The audio for closing argument, attorneys As are by police included statements generally replay excerpts officers allowed to from complaints a number testimony, analogous had been filed recorded which is to 282 cook,”

reading excerpts Hodges frying pan; from the record. don’t in a and that State, 837, that, Ga.App. Appellant any v. 194 392 262 “I don’t have S.E.2d told her Gross, 74, (1990); Phyllis People Ill.App.3d anything Berry v. 265 control over do.” (1994). 250, “highly 202 637 N.E.2d Appellant Ill.Dec. 789 described as intoxicat Here, however, replay Appellant’s videotape Ap ed.” testified that brother repetition ready pellant up fight.” but a of Lindeman’s entire was “wired to testimony, recalling Appellant tantamount to Linde- as being Officer Wolfe described man transported stand him to the witness the middle intoxicated when he from Dotson, Compare Egan v. crime King’s Daughters’ summation. 36 the Med scene evidence, 459, (1915), S.D. 155 N.W. 783 ical Center. overruled From Larson, grounds, judge on other Hackworth could and that Appel v. did conclude 674, (1969), 83 S.D. 165 N.W.2d in lant was an instruction on entitled to 705. attempted which se pro litigant give a defense intoxication. Slaven Com monwealth, 845, unsworn testimony regarding disputed Ky., 962 S.W.2d (1997); fact during opening his statement. Brown v. Jewell Com try right person

The of a his case own monwealth, Ky., 549 S.W.2d contemplate privilege does not (1977), grounds, Payne on other overruled giving testimony three times in the same 623 S.W.2d 867 case, viz: As an unsworn in the witness denied, cert. S.Ct. U.S. statement;” “opening as a witness under However, L.Ed.2d 167 oath; closing again argument. Appellant’s request refused to instruct the Id. at 790. manslaughter jury on second-degree actually Officer Lindeman testified of murder. included offense lesser respect investigation times with to his four in Slaven v. Appellant’s alleged confession in this out pointed As case, during viz: As an unsworn defense supra, witness statement, opening voluntary both sworn and un- of does not authorize intoxication acquittal sworn the Commonwealth’s if finds the defendant case-in- chief, could not again then as an unsworn witness was so intoxicated that he form during closing argument. requisite We do not de intent to commit murder. Rather, repetition cide here whether the of admis its to reduce offense effect is (or prejudice sible so from the crime of murder evidence could a defen intentional him a first-degree manslaughter) dant as to entitle new trial. We wanton manslaughter. repetition do second-degree decide here that of inad crime of provides regarding disputed “wantonly” missible evidence definition “solely wantonly fact prejudicial person was so this case as to acts also preclude finding of acts any harmless error. reason of intoxication thereto.” wantonly respect KRS III. INTOXICATION DEFENSE. 501.020(3). that if a defendant means This intoxicated that he voluntarily There evidence that the was so so, murder, killed intent to hours do preceding Bess Horton’s another without intoxication, itself, Appellant voluntary quantity consumed substantial the-fact his beer, wantonness whiskey, tranquilizers,” “horse constituted nec the element drunken, possibly marijuana. essary second-degree His out-of- man convict of Thus, arriving slaughter. control after at his moth if a is instructed on behavior voluntary a defense to in night er’s on the of the murder intoxication as residence first-degree man documented. Minnie Burton tes murder or well tentional be instructed on began quarreling slaughter, tified be it must also the two aas lesser second-degree manslaughter Appellant attempting cause to cook offense; failure to do so “crazy stuff, really included and the pickles, you like stuff

283 denied, prejudicial 2508, is Springer 929, error. v. Common- cert. 408 U.S. 92 S.Ct. 33 wealth, 439, (1999); (1972); Ky., 998 S.W.2d 454-55 L.Ed.2d 342 Miller v. United States, (8th 492, Cir.1968), supra, Slaven at 856- 396 F.2d 496 denied, 1031, 643, cert. 21 Having Appellant 57. determined that U.S. 89 S.Ct. (1969). case, “In was entitled to an L.Ed.2d 574 each instruction on the de- defendant, intoxication, question ultimate is: Did the fense of with a full knowledge legal rights, his judge’s refusal to instruct on second-de- knowingly intentionally relinquish gree manslaughter was reversible error States, supra, them?” Miller United requiring new trial. arrest, Appellant 496. At the time of his told Officer Lindeman that he was aware IV. DOBSON’S OPINION and, fact, of Miranda rights his recited TESTIMONY. them verbatim to Lindeman. He does not Appellant it asserts was error to claim and there no reason to assume EMT, Dobson, permit the express that he suddenly forgot being them while opinion that there was too much blood on transported from the crime scene to the Appellant’s arms and clothing to have re hospital. solely sulted from Appellant’s relatively Furthermore, police Dobson was not a injuries. minor The trial found judge officer, employee but an of the hospital. Dobson training experi had sufficient There was no support evidence to a conclu- express ence to opinion, such an KRE sion that he was a state actor as is re- 104(a), 702, KRE and we conclude that his quired support a claim of a of a violation finding in regard was not an abuse of constitutional right. Fugate discretion. police (1999); causally Absent conduct related to

993 S.W.2d 931 Ford v. Common confession, wealth, simply there is no (1983), basis 665 S.W.2d 304 cert. denied, 984, concluding any state actor 392, has U.S. 105 S.Ct. (1984). deprived a criminal defendant of due L.Ed.2d 325

process of law. V. 164, APPELLANT’S STATEMENT 157, Colorado v. Connelly, 479 U.S. 515, 520, (1986);

TO DOBSON. 107 S.Ct. 93 L.Ed.2d 473 McDowell, see also Burdeau v. 256 U.S. Appellant asserts it was error to (1921); 41 S.Ct. 65 L.Ed. 1048 permit Dobson repeat the incriminating Cooper, Ky., Commonwealth v. 899 S.W.2d response Appellant which made to Dob- (1995), 76-77 Coolidge v. New inquiry son’s origin about the of the blood cf. 443, 487-90, Hampshire, 403 U.S. S.Ct. body and clothing, Appel 2022, 2048-50, 29 L.Ed.2d 564 lant had not been readvised of his Mi Brock v. randa rights inquiry before the was made. (1997). 24, 29 We note at the outset that Miranda was protection Smith, concerned with “the Appellant which must relies on Estelle v. given to the privilege against self-in U.S. 101 S.Ct. 68 L.Ed.2d 359 crimination when the individual is first incriminating which statements subjected police interrogation.” Mi made psychiatrist defendant to a dur- Arizona, 436, 477, randa v. competency U.S. ing examination were held 1602, 1629, him, S.Ct. 16 L.Ed.2d 694 against inadmissible because the Miranda does not require that the warn prelimi- statements were elicited absent ings repeated each interroga nary time the warnings. psychiatrist Miranda The process tion actor, is resumed after interrup was deemed state because he had tion. Delay, United States v. appointed by F.2d been the court to conduct the (8th Cir.1974); Here, Evans v. Swen examination. there was evidence no son, (8th Cir.1972), 455 F.2d 296-97 that EMT requested ap- Dobson was or Commonwealth, pointed by any agency interrogate to state 754 S.W.2d denied, Appellant cert. origin about the of the blood on 516 U.S. 154, 133 body clothing. his and The mere fact that S.Ct. L.Ed.2d 98 This police transported Appellant to kind of is no more King’s admissible Daughters’ Hospital by of when defendant than for treatment offered when not, Nor ipso facto, wounds did transform offered does Dob- Commonwealth. hospital employee report son into a fall the business records from state within rule, hearsay exception actor. to the since there proof person prepared was who no VI. EXCLUSION OF EXCULPATORY duty report was under a business to do

EVIDENCE. 803(6); Rabovsky so. KRE v. Common wealth, 10; supra, at Prater v. Cabinet An arguably exculpatory investi for Resources, 959; supra, Human at Law gative report was in the discovered rec son, V, was, § at If it 8.65 465-66. supra, Grayson Department ords of the Police Fields, indeed, prepared by he did Ronald prior and furnished to defense counsel to employee so at a time he was not an when report trial. unsigned The and con Department. Grayson Police Final primarily hearsay sisted information ob not have ly, the would opinion author’s tained its from unidentified author wit (cid:127) exception. been under this admissible Burton, implicated nesses who Minnie 803(6)(B). KRE Phyllis Berry Berry’s boyfriend, and Scott Trent, in the murder Mrs. Horton. The VII. MISCELLANEOUS ISSUES.

report concluded: I, Appellant cites instanc after several myself, talking believe with es in he people their which believes Commonwealth listening these and sto- ries, acts” in introduced evidence of “other bad burglary that the murder took KRE.404(b). have exam violation of We place evening earlier that and that the disagree ined people off each of these claims Sammy other had ran and left (sic) Appellant’s characterization this gotten because he had wild for Sammy Specifically, evidence. the fact Offi them and had returned to did im Appellant cer Lindeman apartment Minnie and broke in Burton’s knew conduct, Appellant’s ply prior bad since looking finding there her. for Not her police had there, father was a officer and former he returned to the crime scene of ly Grayson Depart for worked Police Mrs. Horton’s home. ment.. The fact that Minnie Burton was speculated Lindeman Officer Appellant logically afraid of followed the report by Appellant’s had been authored Appellant facts that had thrown knives at father, Fields, employee Ronald a former her while at his mother’s residence Grayson Department Police just had killed his told her that he had employed by Hill Police Olive Berry Phyllis The fact that testi brother. Department on the date Mrs. Horton’s prison fied that her brother was now murder. Ronald Fields admitted that he Appellant’s cast character no reflection on investigation his own conducted just was an ac Berry’s brother prepared report which he furnished to quaintance of Appellant. Department, though the Grayson Police upon identify called crime were ad par photographs never The scene report. report ticular consisted al same reasons as video missible videotape. The exclusively most of the kind of of the crime scene “investiga Officer Lindeman hearsay” consistently prosecutor’s inquiry tive which we have killing Appellant whether denied condemned. Slaven 859; on Appel Mrs. a comment supra, Bussey Horton was not Lindeman, According Sanborn silence. lant’s Appellant did not right exercise his assignment justifies of error our reversal silent, remain but admitted killing Mrs. of Fields’ conviction.

Horton. The trial judge did not abuse his deny Appellant public

discretion or trial NARRATED VIDEOTAPE EVIDENCE by removing spectators from the court agree majority’s While I with the conclu prior hearing room legal arguments sion that the narrated of the video instructions, concerning jury particularly tape was hearsay, inadmissible I cannot any objection. the absence of gen See agree improper that the admission of this erally Co., Lexington Herald-Leader Inc. sufficiently prejudicial evidence was under (1983). Meigs, Ky., Ex 9.24 RCr to warrant reversal of the convic cept for the failure to include an instruc tion. Much of the material contained tion on second-degree manslaughter, the video demonstration concerns the loca judge’s instructions accurately framed tions and investigating movements of the the law of the case. It was not error to scene, officers while on the and these were admit Appellant’s evidence of prior five issues, uncontested but also minor convictions during penalty phase type matters of the found harmless in 532.025(l)(b). trial. KRS Use of the bur Tran, (Tenn. State v. Van 864 S.W.2d 465 glary an aggravating authorizing factor 1993). Fields contests factually only the imposition of penalty the death did not segment of the video demonstration where constitute jeopardy. double Bowling v. Officer Lindeman describes the encounter Ky., 942 S.W.2d between himself and Fields and where he denied, cert. 522 U.S. 118 S.Ct. recites Fields’ alleged confession. Fields 451, 139 L.Ed.2d 387 testified that jumped Officer Lindeman Since being this case is remanded for a him, floor, knocked him on put a gun trial, new there is no need to discuss the head, him, to his threatened to shoot claimed selection, errors relating jury accused him killing Bess Horton. This Appellant’s temporary absence from the was contradicted Officer Lindeman’s dire, courtroom during voir or other mat- testimony at trial. majority opinion ters which are unlikely upon to recur retri- indicates that Fields telling denied Officer al. Lindeman that he had stabbed Bess Hor

Accordingly, judgment of conviction ton, but Fields admitted his testi and sentence imposed in this case are re- mony may that he have made the state versed and this case is remanded to the ments in an appease effort Officer Rowan Circuit Court for a new trial in Lindeman. accordance with the opin- contents of this While I believe the majority is correct to

ion. describe the audio narration on the video- tape as an prior inadmissable consistent LAMBERT, C.J.; JOHNSTONE, and statement offered to bolster Lindeman’s STUMBO, JJ., concur. testimony, in-court I do not feel that its KELLER, J., by separate dissents introduction into evidence and the Com- opinion, with GRAVES and presentations monwealth’s of the video to WINTERSHEIMER, JJ., joining that rights” “affected the substantial dissent. Fields. 9.24. RCr KELLER, Justice, dissenting. Fields testified during guilt/inno- I dissent majority opinion trial, and, from the phase be- cence of his in addition to cause I disagree with the conclusions it exposing impeachment himself to on the reaches regarding videotaped record, both the prior evi- basis felony gave of his dence, II, Part and the intoxication de- an opportunity theory to hear his fense, Part III. my opinion, girlfriend neither had killed Bess Horton. Of- 286 degree

ficer Lindeman testified trial consistent- the crime committed was of a lower ly v. videotape culpability.” with his narration on or lesser Brown the Common- wealth, 252, (1977). opportunity Ky., Fields had an 555 S.W.2d 257 cross-exam- testimony. jury concerning him on all of As all the ine that The of evidence Bess EMT, emergency from an an inten- heard room Ja- Horton’s murder demonstrates Dobson, any son that Fields him- murder com- incriminated tional devoid wanton whatsoever, by explaining self the amount of large ponent majority holding the on the clothing special .judges blood his arms and with creates a rule trial that statement, s.o.b., stupid you juries “You if had the of voluntary instruct on defense just you always lady, killed some would be cov- intoxication must also instruct on blood, deliberating with as second-degree manslaughter “package ered too.” After a presented, jury principled on all of the evidence I can no the deal.” Because see rule, support a beyond statutory believed a reasonable doubt that basis or for such Fields murdered Bess Horton. must I dissent. are an Lesser included' offenses not enti a

RCr 9.24 directs this Court to reverse tlement, consistently Court has criminal the conviction on basis eviden- held that trial on courts should instruct tiary appears to us matters when it if, “only lesser included consider offenses “the that denial such relief would evidence, ing totality the the jury the justice.” inconsistent with substantial I might have reasonable doubt as to the cannot conclude di- jury that so offense, guilt greater defendant’s of the over the credi- vided issue of the relative yet beyond believe a reasonable doubt bility of Fields and Lindeman that Officer guilty that of the lesser offense.” he is they swayed were number times Tamme v. 973 presented Officer version Lindeman’s (1998) 13, (citing v. 36-7 Webb S.W.2d them. Both Fields Officer Linde- Commonwealth, Ky., 904 S.W.2d man testified in trial. court (1995)); also, v. See Brown Common opportunity jury This afforded wealth, supra; Tipton v. credibility. weigh assess and their relative (1982) (“[T]o Ky., 640 S.W.2d I the trial court’s of the believe admission erroneous, support a lesser included instruction the videotape narrated in- but posture of the evidence must be such as to sufficiently prejudicial to justify reversal as create reasonable doubt to whether I if not believe that the audio do guilty higher the defendant is or videotape played been Id.); degree.” lower Moore Common times, all, jury fewer or not at (cit wealth, (1989) Ky., 771 any have reached other conclusion. would ing Hayes (“It (1982)) proper S.W.2d 583 INTOXICATION DEFENSE instruct on a offense when wanton & SECOND-DEGREE that it would be all evidence indicates MANSLAUGHTER jury to unreasonable believe opinion, majority In Part III of the oth anything the defendant’s conduct was trial committed Court holds that the court Id.); v. Com er than intentional.” Gall failing reversible error to instruct monwealth, 108-109 jury on the lesser included offense of sec- disagree ond-degree manslaughter. Court, Supreme majority’s this conclusion because the United States Evans, Hopper 102 S.Ct. holding represents departure a radical U.S. clarified precedent from which holds that the L.Ed.2d 367 whether to instruct a may only court on lesser included the decision instruct has a “jus- on offenses presented offenses when the lesser included process re- constitutional dimension: “due theory doubt based tifies] quires that a in- lesser included offense fining per- offense when he fails to given struction be when the evidence unjustifiable ceive substantial and risk warrants such an But instruction. due the result will occur or that process requires that a lesser included of- circumstance exists. The risk must be given fense instruction be of such nature only degree when the that failure to perceive evidence gross warrants such an it constitutes a instruction.” deviation 2049; Id at 102 S.Ct. from the standard of care that a See Cox v. reason- person able would S.W.2d 834 observe the situa- (1973). tion. 501.020. KRS

KRS 501.020 defines the mental states important that, It is to realize unlike at applicable in the Kentucky Penal Code: law,1 culpable common mental states (1) “Intentionally” person in- acts —A fully defined at KRS 501.020are and clear- tentionally respect with ato result or to ly mutually defined so as to be exclusive. conduct by described a statute defining In Wells v. Ky., 561 an offense when objective his conscious we described intent is to cause that result or engage manifesting wantonness extreme indif- that conduct. ference to the of value human life as “two distinct culpable mental states.” Id. “ (3) “Wantonly” person acts wanton- —A ‘Culpable mental state’ means ‘intention- ly respect with to a result or to a cir- ally’ or ‘knowingly’ “wantonly’ or or ‘reck- cumstance described a statute defin- lessly,’ as those terms are defined in KRS ing an offense when he is aware of and 501.010(1) (emphasis 501.020.” KRS add- consciously disregards a substantial and ed). Although the draft Model Penal Code unjustifiable risk that the result will oc- provision included a which defined less cur or that the circumstance exists. The culpable mental fully states as encom- risk must be of such nature and degree passed within “purposely” its definition of that disregard thereof constitutes a (what Kentucky Penal Code refers to gross deviation from the standard of as intentional conduct in an identical defi- 'conduct that a person reasonable would nition),2 the Assembly General did not observe person situation. A subsection, adopt this and defined the cul- creates such a risk but is unaware there- pable given mental states so that a act is solely by reason of involuntary intoxi- intentionally undertaken either or know- cation also acts wantonly respect with ingly or wantonly recklessly.3 or thereto. court should instruct the on both (4) “Recklessly” person acts reck- intentional murder and second-degree —A lessly respect to a result manslaughter, or to a offenses with conflicting circumstance states, described a statute de- mental presents when the evidence 1. "At charge common law a knowingly murder em- recklessly. or When reckless- degrees braced all culpable the lower element, ness suffices to establish an such jury may homicide” and “the find a defendant person element also is established if a acts guilty offense, aof lesser-included even purposely knowingly. acting or When though support there is no evidence to element, knowingly suffices to establish an greater lesser than the Commonwealth, crime....” Smith v. such element person also is established if a Ky., 737 S.W.2d 688-89 purposely. acts 3. See Robert G. Lawson and William H. For- 2.02(5): 2. Model Penal Code Section tune, Law, Kentucky Criminal Section 2- Negligence, Substitutes for Recklessness 2(c)(2) (LEXIS 1998) for a discussion of infer- Knowledge. provides When the law ences which can negligence be drawn from the General suffices to establish an ele- offense, Assembly's ment of an failure such element also is to include Model Penal person 2.02(7) purposely, established if a legislation. acts Code Section in the final question given to whether act was vorsen v. (1987) (“In number, accomplished intentionally wantonly. view of the loca or However, tion, and lethal proves magnitude gunshots, when all of the it have give doubt would been unreasonable to beyond reasonable that someone 925); here, murder intentionally, as is the the wanton instruction.” Id. acted case requirements of another mental competing product murder was Bess Horton’s law, state, as a matter cannot be estab- rationally of a criminal act which cannot lished. or product described as the a wanton mental Bess mur- Commonwealth, reckless state. Horton’s v. 979 Ky., Hudson began sawing open victim’s 106, by derer that S.W.2d 110 we stated knife, of multiple passes throat with a and of evidence the mental state connected finished, opin- in the majority the words of may a criminal act inferred from ion, by “in the with such stabbing her head examining results of that the act: the hilt in force that knife buried to the Intent to kill can be from the inferred temple point right her and the of the blade inju- of extent and character a victim’s temple.” protruded from left A her Further, pre- a person ries. because is not reasonably could conclude that Bess logical probable sumed to intend the and decision hack the Horton’s murderer’s conduct, consequences person’s of his “a victim’s throat and his blade apart plunge of ac- may state mind be inferred from her “created a risk” that through skull the preceding following tions Horton and that mur- Bess would die the charged offense. either the risk or was too ignored derer (citations deleted); Id. See also McGinnis appreciate possibility drunk to the 518, Commonwealth, Ky., v. can stabbing through the head someone rationally 524 crimes cannot Some have only kill them. murderer could The acts product be viewed as the of wanton open throat and buried sawed victim’s tangible because of those results temples if “his con- his knife between her absurdity crimes of defin demonstrate objective to cause [her scious [was] ing scope certain within actions 501.020(1). death].” KRS The evidence risky contemplated the Ken by behavior second-degree a justify this case did not wantonly. Penal tucky Code’s definition of instruction manslaughter because there is See, Moore v. 771 juror no evidence a reasonable from which (victim 34, (1989) pushed S.W.2d 37 unintentionally could believe that Fields missed, embankment, down an shot at and killed Bess Horton. then in shot in the head four times holds, however, a cluding top majority contact of the wound head); Commonwealth, present- voluntary v. 827 evidence of intoxication Foster (five 670, were him to a second- by S.W.2d 677 victims ed Fields entitles hours, a mat- brutally period as degree manslaughter killed over of four instruction incorrect, majori- range, repeated shot at of law. each close stabbed ter While car, given ly, by ty’s crushed instances conclusion understandable some voluntary burned, sepa haphazard then dead and inconsistent left for at three state,4 in this throughout city); jurisprudence rate Hal intoxication locations War, manslaughter ev voluntary 4. Since the time of the American Civil offense of may Kentucky voluntary evi influ recognized have idence of intoxication courts jury’s presence voluntary determination of the dence intoxication was somehow ence See, e.g., prosecutions. aforethought. v. Com significant The ex malice monwealth, Smith to homicide 224, intoxication, 224, 227 Ky. 1 Duvall act 62 role evidence Commonwealth, however, (1864); Ky., 63 far At v. has been from consistent. Golliher 163, 163, (1865); 2 165 Blimm Ky. Commonwealth, of volun Duvall times courts have held 320, Ky. 7 325 tary requires 70 Bush intoxication the trial court Commonwealth, Ky. 71 to the included Shannahan instruct lesser afternoon, pistol particularly adoption chased bullets for his one before the wife, Kentucky bought Prior shot his then more bullets today’s Penal Code.5 however, majority opinion, the law in and “fired several more shots into her Id.); Weick v. that, Common- body.” state has lifeless always been even inten- wealth, tional presenting questions Ky. homicide 258 S.W. cases (1924) (No intoxication, refusing of voluntary lesser included error in to instruct on requiring manslaughter offenses unintentional mental where defendant laid justi- states to ride vic- given should be where wait his victim fied him with a bicycle This was the case tim’s and shot once evidence. Richards pistol); early juris- both in our tifie and twice with Commonwealth’s prudence just adoption before the See, (1975) (Conviction e.g. Mar- despite Code. Kentucky Penal affirmed failure

shall v. Ky. voluntary manslaughter instruct on be- (1910) (Defendant’s S.W. 139 murder con- cause the case now before us there “[i]n decapitating pas- viction for his former was no sudden heat of girl- evidence of sion, friend with a despite affray, provocation. razor affirmed sudden or Therefore, court’s refusal to on lesser was not to instruct includ- Richards entitled Commonwealth, offenses); v. ed Harris voluntary manslaughter instruction on 542, (1919) (No Ky. 509, 183 209 511 regardless S.W. at the time his drunkenness Id.); Elmore v. Com- reversible error the trial where court re- shot Carter.” monwealth, manslaughter 328, fused to instruct in light on 331 (1975) (Conviction pur- evidence showing voluntary defendant under man- 463, 463, (1871); Rogers provided 8 by broadly Bush 470-71 v. the more defined homi- Commonwealth, 24, 813, murder, Ky., Ky. voluntary 96 27 S.W. manslaughter, cides of (1894); Commonwealth, 814 Bishop v. involuntary manslaughter. 109 and Involun- 558, (1901); Ky. statute; 60 S.W. 190 Pash v. tary Com manslaughter was defined monwealth, 390, Ky. 146 142 S.W. 700 voluntary and statutes on murder man- (1912); Commonwealth, Ky. Graham v. 200 slaughter penalties prescribed for convic- 161, (1923); 252 S.W. 1012 tion, Shorter v. Com but left definition of the to offenses monwealth, 472, Ky. 252 67 S.W.2d 695 principles. and common law sources (1934); Commonwealth, 587, Ky. Horn v. 292 killing Murder was defined as with mal- times, (1943) 167 S.W.2d 58 Other the courts aforethought. ice The words "malice” and have voluntary held that intoxi "aforethought” unhelpful were if not con- cation cannot reduce a crime from murder to fusing; the exact nature of the offense was manslaughter, but should considered following unclear. The homicides consti- determining whether to sentence adoption tuted murder before the of the imprisonment. the defendant to death or life Code; killings, "depraved intentional Commonwealth, 542, Ky. Harris v. 183 209 killings, felony heart” and murder. Volun- (1919); Commonwealth, S.W. 509 v. Thomas tary killing manslaughter was defined aas 539, (1922); Ky. 196 245 164 S.W. v. Perciful affray passion in sudden or sudden heat of Commonwealth, 673, Ky. 212 279 S.W. 1062 upon provocation pas- calculated to excite (1926); Ky. Lawson beyond sion Limited to control. intentional 1 S.W.2d 1060 killings, manslaughter voluntary operated mitigate essentially penalties to that would possible lingering 5. It is some of imposed ordinarily have been for convic- concerning the confusion state of the law of murder. tion of intentional The statute on voluntary intoxication in the Commonwealth manslaughter involuntary created two de- hybrid stems statutory from the of ill-defined offense, grees felony penal- one with and common law of homicide within which (below voluntary manslaugh- for ties ter) those developed: the "defense” penalties. and one misdemeanor with felony killing defined as a adoption before of the Penal Code, "wanton to life” indifference while the mis- Kentucky nearly a dozen homi- killing through demeanor was defined as scope cide were crimes. Most narrow in violence, (e.g. "reckless lynching killing mob conduct.” Fortune, through negligent operation Robert G. Lawson William H. of a motor vehicle, Law, (a) (LEX- through Kentucky homicide an act Criminal Section 8-1 of abor- tion, etc.) 1999) (footnotes deleted). duplicative coverage of the IS opinion gives in- slaughter given Today’s majority instruction birth to a lesser principle that every new of law intentional cluded in murder indictment re- offense homicide case in which sufficient evidence voluntary giving versed because “the of a presented justify voluntary intoxi- manslaughter is proper instruction pursuant cation instruction 501.080 KRS those instances where is evidence there wantonness, questions involves also support giving that will of the instruc- must be instructed on second- Id.). adoption tion.” After the degree manslaughter. simply do not Code, the Kentucky regarding Penal law agree with this conclusion a number of when to included of- instruct lesser reasons. fenses remained the same. Jewell v. See First, majority’s relies on holding Commonwealth, Ky., 549 S.W.2d precedential inadequate support when it Commonwealth, Ky. Salisbury v. opinion to this cites Court’s Slaven (Convic- (1977) App., 556 S.W.2d Commonwealth, Ky., 962 S.W.2d in- tion under manslaughter support conclusion that a trial its given struction as lesser included offense by failing commits error court reversible to murder affirmed “in addition second-degree manslaughter instruct on intoxication, to the evidence of there is ev- as a lesser included offense an intention- shooting in sud- idence occurred prosecution al homicide when the evidence affray passion.” den or sudden heat of supports voluntary intoxication instruc- Id.); Slaughter Notwithstanding tion. fact that (1988) (Murder con- as far language Slaven does reach despite viction affirmed trial court’s refus- opinion,6 prec- today’s majority as Slaven’s upon al to instruct wanton murder and au- greater edential value is no than the degree manslaughter second because de- upon it A close thorities which relies. person that fendant’s defense another reveals examination of those authorities presented committed the murder no evi- prece- Slaven either overlooked an which justifying dence instruction rer contrary holding or dent to its intended state); a quired wanton mental McGuire silently area change by the law in this Commonwealth, Ky., 885 S.W.2d precedent that the overruling suggesting (1994) (“[Prior implying dicta on lesser decision of whether to instruct be lesser included offenses never should re- included offenses in intoxication cases given pre- when the trial court instructed on quires examination of first appears an sented. It to me that the voluntary as a intoxication defense possibility probable, is more and view correct evi- intent is not where the' crime] as an rather than a wa- aberration Slaven other presents dence lesser included or change. tershed involving wantonness or reck- offenses state, as be- culpable lessness a mental in Mead- only The case cited Slaven is voluntary cause intoxication is not then ows added)). (1977), twenty (emphasis

defense.” at 935 was decided Id which Today’s slaughter) of second- majority 6. describes the interaction to the wanton crime degree manslaughter. voluntary defense between the intoxication Slaven v. In and lesser offense included instructions (1997), language was less the Court’s holding stating: jury’s belief rigid was that the ... defense intoxication reduce in the intoxication defense “could acquittal does not an authorize if to wanton offense from intentional homicide was so added). finds the defendant intoxicated (emphasis at 857 homicide....” Id. requisite he could not form the intent interpreted can version be Slaven While Rather, commit effect is to consistently murder. its with McGuire majority today’s reduce the offense from the intentional 885 S.W.2d 931 (or opinion first-degree man- cannot. crime of murder Slaven, years Second, before. years Three before authority other cited McGuire, Slaven, this Court supra Commentary decided the 1974 to the vol- statute, untary 501.080, principle reaffirmed the intoxication KRS the trial court explicitly contradicts conclusion give should no instructions on lesser in- by today’s reached court. The Commen- they justified cluded by offenses unless are tary reads: Despite evidence. the fact that majority “wantonness,” In today cites its definition of Slaven for conclu- KRS requires 501.020 squarely sion element of this by contradicted our holding culpable McGuire, mental state an awareness the Court has made at- no the actor of substantial and unjustifia- tempt to distinguish or address McGuire. risk that a ble result will occur or that a authority address, The Slaven did circumstance exists. This element of Meadows, supra, properly is not cited as “awareness” is used to “wan- distinguish authority for the proposition that lesser tonness” from In mak- “recklessness.” included offenses should given these ing this distinction KRS 501.020 ex- if cases even warranted the evi- pressly provides that of a “unawareness” Meadows, dence. the defendant risk, solely by if caused voluntary intoxi- claimed accidentally discharged his cation, preclude showing does not ” shotgun victim, and killed the and also added). (emphasis “wantonness. Id alleged that he had consumed alcohol and Commentary The indicates that while vol- prior medicine shooting. untary intoxication alone does not consti- court instructed the jury on intentional wantonness, tute a defendant who has and, homicide apparently, on the lesser recognize failed to a risk by virtue of his degrees homicide, of wanton and reckless intoxication cannot against defend a claim but did not feel that the evidence warrant- of wantonness on the basis of his intoxi- ed a voluntary instruction, intoxication and cation and that the evidence could still However, this Court agreed. because the acting show he was wantonly as defined at evidence relating to shooting accidental preclude” KRS 501.020. “Does not is not justified instructions on wanton and reck- synonymous “constitutes,” with and the homicide, less the majority remarked in Commentary to hardly KRS 501.080 is dicta: only “The tangible effect the evi- support majority’s for the conclusion to the dence of intoxication would have had was contrary. to reduce the offense from intentional Third, majority the mutates the defini- homicide to wanton or reckless homicide.” 501.020(3) of “wantonly” tion in KRS and Meadows, supra words, In 513. other concludes, law, apparently as a matter of the trial court in Meadows felt that there that a persuades defendant who a jury was sufficient of evidence wanton or reck- sufficiently that he was intoxicated to ne- conduct, less any absent consideration of gate the intent element of intentional mur- intoxication, the defendant’s justify in- der, has demonstrated “the element of offenses, and, structions on lesser in that necessary wantonness to convict of second- context, separate a voluntary intoxication words, degree manslaughter.” In other instruction as a defense to intentional opinion majority misinterprets par- the the only homicide would have directed the “wantonly” allel definition of in the third to consider the lesser offenses. In the 501.020(3) sentence of KRS require only process laundering in holding Mead- voluntary majority intoxication. The dis- Slaven, ows through this rationale is dis- incomplete covers this definition delet- carded, and, for Kentucky the first time in ing the “A language person who creates jurisprudence, this Court tells the trial such a risk but is unaware thereof’ from courts of this state to give instructions 501.020(3), the last quot- sentence of KRS which are not warranted ing evidence. that remainder of sentence out of

context, jettisons Today’s majority and defini- cation. and concluding “[t]he person ‘wantonly^ provides any voluntary tion that a wanton conduct labels wantonly ‘solely by who acts reason of intoxication which is sufficient to excuse an wantonly voluntary intoxication also acts intent crime. “ respect thereto.’ Finally, dispute majority’s I conclu- voluntarily sion: a defendant was so “[I]f ignores redefinition This KRS 501.030’s that he killed without intoxicated another a act which requirement so, intent to do the fact of his volun- culpable certain risks a accompany creates intoxication, itself, constituted tary the ele- A reading mental state. correct 501.020(3) necessary ment of wantonness to convict of third sentence of KRS must rec- second-degree manslaughter.” other ognize that it in operative is situations words, majority any holds that defen- objectively where someone’s behaviors and person after dant who kills another volun- independently of intoxication would create ingesting quantities or tarily of alcohol contemplated in types risks the point other controlled substances to previous language sentences. The KRS 501.020(3) he to form the where is too intoxicated concerning voluntary intoxi- necessary commit intentional “eliminate, intent merely cation serves to law, has, murder as a matter of committed situation, one the distinction between manslaughter. second-degree KRS “wantonly’ ‘recklessly,’ mental states of and “ second-degree manslaugh- 507.040 defines by: person manslaughter “A guilty ter: [B]ring[ing] play special into a definition when, including, but not degree the second of “wantonly,” one that eliminates the to, vehicle, operation of motor limited proof of need for awareness con- he the death of another wantonly causes disregard scious of risk. The intoxicat- person.” ed fails perceive actor who risk that perceived by would have been sober any person today The Court holds though actor is treated as he was aware large number of beers and drinks consciously disregarded un- tranquilizers” creates a some “horse takes perceived risk. unjustifiable [that risk “substantial Fortune, kill nature and Kentucky someone] Criminal will ... of such Lawson 1998). Law, 2-2(d)(3) (LEXIS disregard thereof constitutes degree Section See (quoted gross of con Commentary also to KRS 501.080 deviation from standard above). person ob Today’s majority overlooks duct that a reasonable would also 501.020(3). KRS Todd S.W.2d serve the situation.” applaud gross where this Court focused on While see no reason 501.030(3) abuse, conclude, statutory espe I language of KRS substance cannot in correctly cially any evidence sub explained interaction the absence trial, per- voluntary in that mitted on this issue at sentences subsection: “A intoxication, alone, creates a risk standing [a son who creates such a risk substantial unjustifiable risk that a result that the will kill someone and will abuser solely by justify second- but is unaware thereof this risk sufficient occur] voluntary manslaughter instruction. KRS degree reason of intoxication also acts 501.060(3); See, respect e.g. v. Common wantonly with thereto.” Id. Lofthouse (brackets wealth, (Ky.2000). original). held Todd We risky substance proper reading that a of the last sentence did not find that Fields’ 501.020(3) a knife between behavior buried required of KRS two conditions abusive (1) precedent temples. They determined finding to a of wantonness: Bess Horton’s murder and creating type defined Fields himself Conduct risk committed subsection, face of instructions they obliviousness of did so they could properly virtue of intoxi- which informed them risk if acquit they Fields felt he was too intoxi- struct on second-degree man- slaughter. cated to know what doing. he was There nothing wanton about Fields’ crime I would affirm the conviction. and the trial court properly declined to give instructions not warranted the evi- GRAVES, WINTERSHEIMER, JJ„ agree dence. cannot majority join this dissent. opinion’s conclusion that an intentional (murder) crime somehow sublimates into

an unintentional crime (second-degree

manslaughter) when a defendant is too

intoxicated form the intent to commit

the intentional crime. The trial court cor-

rectly decided it unnecessary to in-

Case Details

Case Name: Fields v. Commonwealth

Court Name: Kentucky Supreme Court

Date Published: Feb 24, 2000

Citation: 12 S.W.3d 275

Docket Number: 1997-SC-0424-MR

Court Abbreviation: Ky.